Guide to Good Practice in cohabitation cases

Non-married cohabiting relationships look set to continue to increase year on year, so advising clients embarking on cohabitation, those already living together wanting to understand their ‘rights’ and those whose cohabiting relationship has broken down, will form an increasing part of the workload of family lawyers. This guide aims to assist Resolution members and their conveyancing lawyer colleagues to manage these cases effectively, in accordance with our Code of Practice.

This Guidance was reviewed in January 2019. The law or procedure may have changed since that time and members should check the up-to-date position.

According to the latest figures available from the Office for National Statistics, there were 18.9 million families in the UK in 2016. Whilst married or civil partner couple families are still the most common family type, the number of cohabiting couple families had more than doubled between 1996 and 2016, from 1.5million to 3.3million.

The myth of the ‘common law marriage’ persists, despite all the efforts of Resolution, the Government’s Advice Now campaign and the Law Commission’s Report in 2007, which clearly identified the lack of rights of cohabiting couples and pointed to the need for law reform. Even when people realise that there is no such thing as common law marriage they are often hazy about their actual legal status and ignorant about the steps which they could, or should, take to protect their legal position. The combination of an ill-informed public and the complexities of the law which generally apply to these cases means that these cases are often difficult to run, expensive for the client and a fertile ground for potential negligence claims.

This guide is aimed primarily at family lawyers, but will be of assistance to their conveyancing lawyer colleagues, since negligence claims can so easily arise from failure to ask the relevant questions and advise properly at the point when a property is purchased. According to the Solicitors Regulation Authority negligence claims against property lawyers are disproportionately high and 26% of all negligence claims are made against residential conveyancing solicitors.

Advice at the commencement of, or during, cohabitation

  1. The likelihood is that a client who is about to move in with their partner, or purchase a property with them, will not understand the legal implications of either step and may have misconceptions about their rights. In order to fulfil your responsibility, as stated in the Code of Practice, to “help clients understand and manage the long-term financial and emotional consequences of decisions”, you will need to explain at the outset that their legal position will be very different to that of a married person and that the applicable law will be the law of property and the law of trusts.
  2. Take detailed instructions on the following in order to understand what is intended and be able to warn your client of potential risks and pitfalls:
  • is the property going to be held in one person’s sole name or in joint names? If in one person’s sole name, is it intended that the other person will have, or be able to acquire, any interest in the property? If in joint names, as beneficial joint tenants or tenants in common in equal or unequal shares (you will need to explain in simple language what these terms mean)?
  • what, if any, contribution your client and their partner will each be making to the purchase;
  • if they are purchasing a property with the aid of a mortgage, what the arrangements are for repayment of the mortgage and the payment of the outgoings and maintenance of the property;
  • whether any third parties e.g. parents, grandparents, will be making any financial contribution to the property, and on what basis;
  • how will any repairs, renovation and improvement costs be dealt with?
  • what are the intended arrangements for the disposal of the property in the event of the relationship breaking down?
  • what is intended to happen if the relationship breaks down and one partner moves out before the property is sold? Who pays the mortgage and other bills pending the sale?
  • what is intended to happen to the property if one partner dies?
  • what if one partner wants to ‘buy out’ the other’s share? How will the property be valued and how will the valuer be chosen? How long should the remaining partner be given to raise the necessary funds?
  • what is intended to happen if your client and their partner have children and one stops working to look after them and can no longer contribute financially?

When you know the answer to all these questions you should be in a position to advise your client about:

  • the legal consequences of taking the planned steps;
  • any rights that they may need to protect;
  • any risks they may be running.

You will also be able to disabuse them of any notions they may have about acquiring a beneficial interest in someone else’s property merely by living with that person. You should advise your client about the benefits of entering into both a declaration of trust and a cohabitation agreement, so that what has been agreed with their partner is clearly documented and enforceable if the relationship later breaks down. You should also advise your client to make a Will to reflect the new arrangements and advise about the difference in tax treatment between married and unmarried couples.

It is not uncommon for two people planning to live together, either one person moving into the property of the other or by buying a property jointly, to want an initial meeting with a solicitor together. If you refuse to see them together, there is a real risk that they will not take advice on the implications of cohabitation at all, because they will not want to instruct separate lawyers at the outset, so what should you do? If you feel comfortable doing so, you could agree to see them together for an initial meeting, but explain that you will only be able to give a general overview of the legal position and the options available to them, but no detailed specific advice. You should also explain beforehand that if they then decide to proceed with a declaration of trust or cohabitation agreement they will each need their own solicitor to ensure that they are separately and independently advised. You will be able to act for one of them only if the other agrees, because you will only have given general, generic advice to both of them.

 

Declarations of trust

Resolution’s recommendation is that cohabiting clients should complete a declaration of trust in all circumstances of property ownership[1]. An interest in land cannot be created unless by deed,[2]the exception being when an interest is created by trust.[3] However, it should be explained to your client that the best time to resolve who owns what is at the beginning of the cohabitation, rather than at the end of the relationship when, if they cannot agree, they will be reliant on the court to decide who owns what and what was or was not agreed between them on the issue of ownership – a decision which will come after considerable sums have been expended on legal fees.

When joint owners purchase a property they have to complete a TR1 which requires the purchasers to state whether they own the property on trust for themselves beneficially as joint tenants, as tenants in common in equal shares, or tenants in common in shares to be specified. This is a tick box exercise. In October 2012, following the cases of Stack v Dowden and Jones v Kernott, HMLR introduced a JO form enabling joint owners to specify in more detail how the property should be owned. A fully completed TR1 and JO form will constitute strong evidence of ownership. However, as the Court of Appeal held in Goodman v Gallant[4], in a case where there is a declaration of trust that comprehensively declares the parties’ beneficial interests in a property or its proceeds of sale, there is no room for the application of the doctrine of resulting, implied or constructive trusts.

Taking account of the Court of Appeal’s ruling[5], you should formally advise all clients purchasing a property with a cohabitant to agree and execute a declaration of trust (preferably supported by a cohabitation agreement – see below)

The declaration of trust should set out:

  • the parties’ respective shares in the property;
  • how the net proceeds should be divided in the event of sale;
  • a definition of the net sale proceeds;
  • how a payment by one party of a capital sum towards reduction of the mortgage should be dealt with;
  • who will be responsible for the mortgage repayments in the event one party cannot meet their obligations and whether or not this will adjust the parties’ equitable interests;
  • details of any third party interests and how they are to be dealt with on sale of the property.

Third party interests

Any contributions by a third party to the purchase price of a property, or outright gifts of money to your client or his/her partner and used toward the purchase price, should be identified. Full instructions should be taken as to whether the gifts or financial contributions are being made/have been made to the parties jointly or to one party alone, or if these are made on condition the parties remain together and should be returned in the event they separate. Advise clients to keep detailed records of gifts and whether or not they are returnable and the arrangements thereon should be recorded in a cohabitation agreement[6].

Cohabitation agreements

Cohabitation agreements are strongly recommended in order to regulate the many issues that may arise as a result of a couple cohabiting. A cohabitation agreement should be in addition to a declaration of trust, not in place of one. A cohabitation agreement can deal with issues not suitable for inclusion in a declaration of trust such as the payment of living expenses, improvements to property, ‘buy out’ clauses, pre-owned property, the management, conduct and closing of joint bank accounts, house contents and pets.

When a cohabiting couple’s relationship breaks down a properly drafted cohabitation agreement is widely enforceable with the courts yielding little power to vary the provisions of it[7]. To be enforceable the cohabitation agreement must be executed as a deed[8].

You are strongly recommended to consult Resolution’s Cohabitation Agreements book (or the online version) when drafting a cohabitation agreement. As explained in the Introduction to Resolution’s Cohabitation Agreements, it is essential that both parties have had (or have at least had the opportunity to obtain) independent legal advice before signing a cohabitation agreement and it is helpful to include in the cohabitation agreement a certificate by the parties’ respective solicitors confirming that they have explained the effect of the agreement. A summary of the parties’ respective financial positions should be appended to the agreement.

Resolution members are encouraged to educate their colleagues who practice in other areas of the law, such as conveyancing or wills, to be aware of the benefits for clients entering into both declarations of trust and cohabitation agreements. Consider preparing briefing notes for your colleagues (or for local firms that do not have family departments) pointing to the risks which flow from not putting such arrangements in place.

Do not include unenforceable provisions within the agreement (those of a highly personal nature such as sexual arrangements) because including unenforceable provisions may cause the whole agreement to fail.

You should follow the Code of Practice at all times in the preparation of the agreement in dealing with your client, their partner, and/or their partner’s lawyer.

Disputes can sometimes arise between a couple over particular issues which need to be agreed for the cohabitation agreement. While solicitor to solicitor negotiations may lead to a resolution, they can also by their nature increase tensions and conflict. You should consider referring your client to mediation or using collaborative law to resolve individual tricky issues, or even all the matters to be covered by the cohabitation agreement.

 

Cohabitation agreements and children

You should advise clients of the limited extent to which a cohabitation agreement can and should take into account what arrangements are to be made in respect of any children of the couple. Whilst the use of family-based arrangements for child maintenance is now encouraged, it is not possible to oust the jurisdiction of the Child Maintenance Service. Nor is it possible to oust the court’s jurisdiction to make an order for financial provision for a child under Schedule 1 of the Children Act 1989.

The agreement should not provide for arrangements such as whether a couple intend to have children or how, childcare, or their respective exercise of parental responsibility generally. Such provisions would be unenforceable and there is a risk that the inclusion of these would cause the entire agreement to fail if it could be said that the couple did not intend to create legal relations as a result.[9] However, clients should be encouraged to give thought to the possible future events that may impact upon them and their relationship.

Clients should also be advised that it is not possible to build into a cohabitation agreement sufficient flexibility to take into account all potential future changes in circumstances that might affect financial provision for children so any attempt to do so must come with a warning of the serious limitations of such an approach. You should refer to Resolution’s Claims Under Schedule 1 to the Children Act 1989 Guide for more information on the range of financial orders the court can make for children of unmarried parents.

 

Non-court dispute resolution

You should discuss with your client including a provision in the cohabitation agreement requiring that resolution of any future dispute should first and foremost be attempted by means of non-court dispute resolution, such as collaborative law or mediation. Clients should be advised of the benefits of these methods, both in helping to minimise potential conflict and in keeping any dispute or issue between the couple private, given that court proceedings brought under the Trusts of Land and Appointment of Trustees Act 1996 are heard in public.

Neither mediation or the collaborative process guarantee an outcome so it is worth considering whether to provide for one of these options to be pursued initially and, if it is not possible to resolve matters at that point, to use arbitration instead. However, be aware that any agreement to arbitrate a future dispute is likely to be binding upon the parties so the wording of any such clause(s) must be carefully considered. Clients need to be clearly warned that they will not be able to change their minds later and follow the normal court route if they opt for an arbitration provision in the cohabitation agreement.

You should refer to Resolution’s Guide to Good Practice on Discussing Dispute Resolution Options prior to discussing these issues with your client. A flow chart of options can be found within Resolution’s options leaflet and on the Resolution website and separate leaflets on mediation and collaborative law are also available.

 

Clients planning to marry

Clients should be advised that whilst a cohabitation agreement does not constitute a pre-nuptial agreement, it is not possible to preclude the court from taking into account the existence and content of a cohabitation agreement as one of the factors of the case if a cohabiting couple were subsequently to marry and then divorce.

You should check with your client whether they are planning to marry or enter into a civil partnership. If they are they should enter into a pre-nuptial/pre-civil partnership agreement rather than a cohabitation agreement due to the different and more extensive claims that will arise as a result on divorce.

Refer to Resolution’s Precedents for Pre-Marriage and Pre-Civil Partnership Agreements as well as the Guide to Good Practice for Lawyers Preparing Pre- and Post-Marital Agreements if a pre-nuptial/pre-civil partnership agreement is more appropriate for a particular client’s circumstances.

 

Duress and domestic violence

You should always be aware of the possibility that a cohabitation agreement is being entered into under duress. You should consider whether there is any pressure being placed upon your client from their partner or any other third party such as family members. Clients should be advised that if an agreement is entered into where there has been significant pressure, financial, emotional or otherwise, there is risk that the agreement would then not carry weight or be enforceable in any future dispute.

Bear in mind that, as with a pre-nuptial agreement, if a client takes legal advice and is advised not to sign the agreement but still does so, the fact that the agreement has been signed with the benefit of legal advice will increase the likelihood that it will be enforced. You should advise the client about this very clearly in writing and to protect yourself you should require the client to sign a disclaimer letter before the agreement is signed.

Resolution members are, of course, encouraged always to be alert to the existence of domestic abuse throughout all their dealings with clients and should be aware of the toolkit for screening for domestic abuse which has been prepared by Resolution and is available to download from the website. Alternatively, leaflets can be obtained from Resolution central office.

 

Advice following the breakdown of the relationship

  1. At the initial meeting with a client whose cohabiting relationship has broken down, as with the breakdown of a marriage, you should explore with the client whether the relationship has irretrievably broken down or whether there is a prospect of reconciliation. You should be ready to suggest therapists/counsellors who may be able to assist your client and their (former) partner.
  2. You should also be alert to the possibility of domestic abuse. The Resolution toolkit for screening for domestic abuse, referred to above, is extremely helpful if domestic abuse is an issue, as is the Resolution Guide to Good Practice in Domestic Abuse cases. It may be appropriate to advise your client to apply for a protective order under the Family Law Act 1996.
  3. If there are any children affected by the breakdown of the relationship you should refer your client to Resolution’s Guide to Separation and Divorce: Helping parents to help children. Copies are available from central office for a small fee. It is recommended that you spend time talking to your client about the potential impact on the children of the breakdown in their parents’ relationship and sign-posting your client to local agencies who can provide additional support for them and the children, if it is needed.
  4. If there are children of the relationship you should also consider with your client a referral to the Child Maintenance Service as well as the possibility of a claim under Schedule 1 of the Children Act 1989 for financial provision for the benefit of the child or children.
  5. Unless there is an urgent need to refer the issue of child support to the Child Maintenance Service or commence proceedings under Schedule 1 of the Children Act (for example, if no financial support at all is being provided or if an injunction is required to prevent dissipation of assets), advise your client of the benefits of resolving arrangements by agreement rather than litigation. You should consider with them whether mediation or collaborative law may be appropriate in their particular circumstances. If agreement cannot be reached an alternative to court proceedings would be arbitration.
  6. Prior to issuing any application under the Trusts of Land and Appointment of Trustees Act 1996 in relation to property (usually the family home) or any ancillary application in respect of chattels, endowment policies etc. it is vital that a detailed proof of evidence is obtained from the client establishing the full history of the relationship with the aim of determining what the parties’ intentions were in respect of the ownership of property. You should emphasise to the client that you need all of the facts, not just those the client may think are important, because claims under the 1996 Act depend heavily on evidence and the detail matters.
  7. The content of the proof will vary from case to case but you should ensure that it addresses the following:
  • the history of the relationship including when the parties met, when they started living together, whether they were engaged (in which case potential claims under the Married Women’s Property Act 1882 should be considered) and the history of ownership of properties, either jointly or in their respective sole names, during the relationship;
  • whether the client signed a declaration of trust, cohabitation agreement or any other document relating to the property or to their relationship;
  • whether there was an oral agreement or mutual understanding between your client and their partner as to the ownership of the property. If so, what was the agreement or mutual understanding? Are there any witnesses who can corroborate this?
  • what legal or other advice, if any, the client received at the time of the purchase of the property or commencement of cohabitation;
  • how the purchase of property was funded and what were the financial contributions of the parties both at the time of purchase and subsequently;
  • whether there is a mortgage secured against the property and, if so, in whose name(s) and who pays the mortgage payments;
  • who is responsible for payment of the utility bills at the property;
  • whether there have been any renovations or other improvements carried out at the property and, if so, how they were funded and/or whether the work was completed by the parties themselves;
  • whether an agreement or understanding could have been implied through the parties’ respective financial contributions, such as contributions to the mortgage or any renovations, or otherwise through their conduct;
  • whether there were any acts of detriment on the part of either party. For example, did either party sacrifice secure housing to live with the other.
  1. Once this information has been obtained from the client you should outline the possible outcomes to the client’s claim whilst ensuring that the client’s expectations are properly managed. You should advise the client that whilst the presence of children is a factor considered by the court in an application under the 1996 Act, unlike (usually) in family law, the children’s welfare will not be the paramount consideration of the court.
  2. The client must be given a clear warning of the costs consequences of commencing proceedings under the Trusts of Land and Appointment of Trustees Act 1996, where the general principle under the Civil Procedure Rules is that the unsuccessful party will be ordered to pay the costs of the successful party. Civil court fees for issuing a claim can be significant and there are costs implications for parties who fail to consider or engage in Alternative Dispute Resolution or take steps in line with the Pre-action Protocol. You should therefore discuss with the client the possibility of mediation or arbitration or other form of ADR and confirm your advice in writing.
  3. It is important that the client is provided with a detailed costs estimate for each stage of the proceedings (including counsel’s fees) and that you consider with the client at the outset how the litigation will be funded. You should remember that alternative funding options may be available, beyond those you are familiar with, in relation to applications in family proceedings. For example, a conditional fee arrangement may be possible. Legal Aid is available in limited circumstances if the client can satisfy the domestic violence criteria with supporting evidence, as well as the means and merits tests.[10] However, if the client obtained legal aid funding and then was successful in claiming/retaining any money or property, the statutory charge would bite allowing the Legal Services Commission to recoup the fees paid. The client must be warned about this.
  4. You should obtain office copy entries from the Land Registry website to identify how the legal title to the property subject to the dispute is currently held. You should request a copy of the relevant TR1 which may record a declaration of trust in respect of the property. There may also be an additional Land Registry Form (form JO) which is used to register a declaration of trust as to how the property is held by any joint owners.
  5. You should seek the client’s authority to obtain the original conveyancing file for the purchase which can be reviewed for contemporaneous evidence of intentions, advice given, payment of the deposit etc. The conveyancing file is of crucial importance and needs to be obtained at an early stage. In the event that the conveyancing solicitor was instructed jointly by the client and their (former) partner the conveyancing solicitor may insist upon the other partner’s consent before releasing the file. Absent that consent, you should insist upon either inspection of the file or being sent a complete copy as your client is entitled to have this.
  6. If the property is held by the client as a beneficial joint tenant you should consider with the client whether the tenancy should be severed and the implications of doing so or not doing so. This is a technical point and therefore advice from Chancery counsel should be sought if you are in doubt.
  7. You must consider promptly with the client whether it is necessary to protect the client’s interest in the property, by an application to register a Restriction (form RX1) or a Notice (form AN1 if agreed, form UN1 if unilateral) with the Land Registry (see gov.uk/government/organisations/land-registry for guidance on this).
  8. If the property is encumbered with a mortgage you should consider advising the client to contact the mortgage company to alert them to the fact that there is an ongoing dispute concerning the ownership of the property. This should prevent the client’s former partner from drawing down on the existing mortgage facility if they had the ability to do so.
  9. You will need to consider with the client the interim position, including payment of the mortgage and other expenses as well as continued occupation of the property and issues such as occupational rent.
  10. More importantly you should also enquire whether the client has made a Will which makes provision for their partner and, if so, consider with the client whether that is still appropriate in light of the change of circumstances.

Prior to issuing proceedings

  1. It is very important to be aware that you do not have a free hand in the steps you take prior to the commencement of a TLATA claim. All solicitors undertaking this work should familiarise themselves with “Practice Direction – Pre-action Conduct and Protocols” in the Civil Procedure Rules 1998. The guidance in this Resolution Good Practice Guide is based on the version of the practice direction which came into force on 6 April 2015 and replaces the practice direction on pre-action conduct which came into force on 6 April 2009. It is therefore important for solicitors to check the most recent version which can be found on the Ministry of Justice website (justice.gov.uk).
  2. The pre action letter: the claimant in TLATA cases is required first to set out in a letter the full details of the claim before issuing a court application, in all claims except where the matter is urgent. This letter is known as the pre-action letter. The letter should cover the following:
  • concise details of the claim including a summary of the facts, the basis on which the claim is made, what the claimant wants from the other party and, if money, how the sum was calculated;
  • the pre-action letter should also refer to any documents on which the claimant intends to rely;
  • you should bear in mind Resolution’s Good Practice Guide on Correspondence and Working with Litigants in Person; care should be taken to ensure that the tone of the letter is non-threatening and sets out facts in a non-aggressive manner. If addressed to a party who is not represented, the letter must also recommend that that party seeks legal advice.
  1. Preparation of a pre-action letter is likely to be a time-consuming process. It involves gathering together all the relevant evidence and evaluating it before setting out the client’s claim and the basis for the claim. Given its importance to the case, and the time it will take to prepare, the pre-action letter will require a substantial financial commitment from the client in terms of legal costs. The need to do this detailed work at this stage must be clearly explained, because it will inevitably front load costs.
  2. If you find yourself acting for the recipient of a pre-action letter, you should be aware of the time limits for defendants to respond. Any documents on which the defendant intends to rely should be identified in the letter in response, as should any counter-claim.
  3. Pre-action disclosure: the defendant is entitled to request disclosure in response to the pre-action letter and the claimant should provide this disclosure before issuing proceedings. The courts expect parties to cooperate in the sharing of information and the pre-action protocol encourages parties to set out their case in full before issuing proceedings in order to allow the best prospects of settlement.
  4. Proportionality: as with the Family Proceedings Rules, solicitors are required to take steps which are reasonable and proportionate to the issues in the case.
  5. Settlement and ADR: the Practice Direction makes it plain that litigation should be a last resort. The full range of options for ADR should be kept in mind. Resolution’s Good Practice Guide on Dispute Resolution Options is a helpful source of information here. When considering the option of Collaborative law, you should have in mind the costs to the parties of instructing new solicitors if the collaborative process fails and the possible concerns of the Chancery Court in this regard.
  6. Solicitors should note that if proceedings are issued the parties may be required by the court to provide evidence that ADR has been considered. Whilst ADR is not compulsory a party’s silence in response to an invitation to participate in ADR, or refusal to participate in ADR, could lead to costs penalties being imposed.
  7. Early use of counsel: Given that both parties’ cases have to be set out early on, in accordance with the Pre-action protocol, it would be prudent to consider instructing counsel for preliminary advice at an early stage. Careful consideration should be given to the choice of counsel – family counsel may not suffice unless also experienced in TLATA cases. It may be better to seek input from specialist chancery counsel. Counsel should also be instructed to draft or settle the pre-action letter and the particulars of claim in complex cases. The detail and recollection of discussions/events is important in TLATA claims and therefore any facts set out in letters and pleadings must checked thoroughly with the client and cross checked with calendars, personal diaries and any available documents to ensure that avoidable errors do not creep in.
  8. A cost/benefit analysis should be undertaken before proceedings are issued, but after pre-action disclosure has been made, which should include:
  • a detailed letter of advice to the client setting out the strengths and weaknesses in the case. Do remember that TLATA cases can end up being all or nothing. The courts do not have the discretion in TLATA cases which they have in financial remedy proceedings in divorce;
  • a detailed costs estimate so that your client understands at the outset how much the litigation may cost if the case goes all the way to trial. This costs estimate will need to be reviewed at each stage of the proceedings and updated if appropriate;
  • the cost estimate should include the cost of a costs draftsman or internal costs team preparing the costs budget as it is important to have specialised input in this specialist area;
  • an explanation to your client of cost budgets, the role that they play in the court process and the judge’s input into them, including that they are complex and a specialism in themselves for which a costs draftsman will need to be instructed, that they can only be estimated at the outset of the case, that there is a limited ability to revise them upwards during the case and that they may have a significant capping effect on costs that may be recovered. The client should be advised that even if they are successful in the litigation and achieve a costs order they will not recover all of their costs against the losing party and will be liable to pay some of their own costs in any event. Failure to advise this in writing is likely to result in a complaint and a finding against you by the Legal Services Ombudsman.
  1. You should carefully record all the time spent on the case in a manner that ensures that it may be recovered on assessment and advice should be taken from a costs draftsman /specialist costs lawyer on how most effectively to do that.
  2. You must advise your client clearly that this is risky litigation; your client is likely to face a substantial costs order to pay for the other party, together with their own costs, if they are unsuccessful. Detailed attendance notes of advice given to the client in person and on the telephone, and follow up advice in correspondence, are therefore essential.
  3. Only once you have complied with the Pre-action Protocol and undertaken a cost/benefit analysis, and if settlement does not seem possible, should you issue the court application. Consideration should be given to whether it should be issued under CPR Part 7 or Part 8 and this is a point on which the input of counsel should be sought.
  4. If there are children of the family a potential claim under Children Act 1989, Schedule 1 should be considered with your client. If a Schedule 1 claim is made, the TLATA case should be consolidated with the Schedule 1 claim, with consideration being given to issuing in the High Court of the Family Division. You must also ensure that your client obtains a maximum assessment from the Child Maintenance Service in order to qualify for top-up maintenance if she is the claimant under Schedule 1.
  5. If your client was formerly engaged to his/her partner, you should also consider whether a claim can be brought under the Married Women’s Property Act 1882 (as amended) and diarise the three year limitation period in which to bring a claim once the engagement is terminated. Consider also section 2 of the Law Reform (Miscellaneous Provisions) Act 1970 for the powers of the court in respect of such claims.
  6. When the TLATA claim has been issued, you should consider putting forward an offer at each stage of the proceedings under CPR, Part 36. Any Part 36 offers made from your opponent should be considered carefully, with the costs implications, if any, explained to the client in writing.
  7. A Chancery FDR (“Ch FDR”) is now available as an ADR option in the Chancery Division (note that since 4 July 2017 the courts of the Chancery Division, along with the Commercial Court and the Technology and Construction Court, have been known as “The Business and Property Courts of England and Wales”) for TLATA cases involving relationship disputes. It is consensual, and therefore the court will not direct a Ch FDR unless all the parties agree to it. This is a relatively new concept and so it is not known how well it works in an area of law that is non-discretionary and where the result may be determined by the court’s assessment of whose evidence it prefers. This option may not be feasible for every case but should be considered prior to the listing of a final hearing. A specimen draft order directing a Ch FDR can be found in the Chancery Guide.
  8. Judges will expect strict compliance with the CPR as well as the Practice Directions. Procedural deficiencies will not be tolerated. Beware of the options to strike out claims or defences and the use of Unless Orders. If in doubt, it is strongly recommended that you seek advice from specialist counsel.
  9. Disclosure in civil cases is different to disclosure in financial remedy proceedings; solicitors should familiarise themselves with the case management procedures under the CPR.
  10. High profile clients, in particular, should be reminded that TLATA cases are heard in public and therefore there is a real possibility of the case being reported in the media.
  11. Financial claims on behalf of cohabitants and former cohabitants are technically challenging. They require knowledge and expertise outside the comfort zone of many family lawyers. If you are uncertain how to proceed you should at the very least instruct specialist chancery counsel and possibly refer the matter to another firm if the issues are especially complex.

[1] Resolution’s Cohabitation Agreements precedent 35

[2] Law of Property Act 1925 s.52(1)

[3] Law of Property Act 1925 s53(2)

[4] Goodman v Gallant [1986] 1 F.L.R 513 at 517 per Slade LJ

[5] In the absence of mistake, duress or undue influence (when rectification or setting aside remedies are available) the parties will be bound by such a declaration – Goodman v Gallant [1986] 2 WLR 236.

[6] Resolution’s Cohabitation Agreements precedent 16 and footnotes 1 -5

[7] See Resolution’s Guide to Good Practice on Drafting Documents

[8] S.1(2) Law of Property (Miscellaneous Provisions) Act 1989

[9] Sutton v Mishcon de Reya and another [2003] EWHC 3166 (Ch)

[10] https://www.gov.uk/legal-aid/domestic-abuse-or-violence